The constitutional amendment proposal, prepared by the AKP and submitted to the Grand National Assembly on March 30, 2010, is causing massive debates not only because of its content but because of its approach. The proposal, which consists of 30 articles including three provisional articles, recognizes new rights such as the protection of personal data, the rights of children, and collective bargaining for public servants. It also strengthens safeguards supporting fundamental rights and liberties by introducing positive discrimination measures for women, children, the disabled, and the elderly, and enlarges the scope of certain rights and liberties such as the freedom of settlement and travel, and the freedom of political parties. In addition, the proposed amendment strengthens the safeguards for the rule of law by abolishing judicial immunities for certain administrative decisions such as those of the Supreme Military Council and the Supreme Council of Judges and Public Prosecutors. Moreover, the proposal contains a provision empowering the Constitutional Court to try the Chief of General Staff and four force commanders, as well as the Speaker of the Grand National Assembly. Indeed, the original text of the Constitution had no provision indicating a competent court to try these persons for crimes connected with their duties. Since the proposal eliminates this ambiguity it indirectly strengthens the principle of the rule of law. Finally and most importantly, the proposal contains provisions to restructure the Constitutional Court and the Supreme Council of Judges and Public Prosecutors in accordance with the requirements of the rule of law and plural democracy.

Strengthening the Rule of Law

The Abolition of Certain Judicial Immunities

In its article 12 the proposal introduces two important changes in article 125 of the Constitution regulating judicial review of the administration. One of these changes is a partial abrogation of the judicial immunities that the Constitution provides for the decisions of the Supreme Military Council. The other is to add a provision to article 125 of the Constitution stating that: "the judicial power is restricted by the review of legality of the administrative actions and decisions, and this power shall never be exercised as a review of opportunity." The proposal introduces judicial review of the decisions of Supreme Military Council only in cases of dismissal from the Turkish Armed Forces. Therefore, this change may play a limited role in strengthening the rule of law. Adding a provision to article 125 restricting judicial review to review of legality simply repeats a well-known principle of administrative law. Contrary to expectations, it may only have a declarative rather than a constructive effect on the system of administrative justice. However, considering the Turkish judiciary's strong tendency to exercise the review of opportunity concerning legislative and executive acts, this attempt may be understandable.

The proposal also abolishes judicial immunity concerning the disciplinary decisions stated in article 129, and abrogates judicial immunity recognized in article 159 concerning the decisions of Supreme Council of Judges and Public Prosecutors. However, it limits such abrogation only to those decisions concerning dismissal from the judiciary.

The proposal also aims at abolishing provisional article 15 of the Constitution. This provision provides judicial immunity for the members of National Security Council, members of the Council of Ministers who served during the military regime (between September 12, 1980 and December 1983), members of the Consultative Assembly (one of the chambers of the Constituent Assembly that prepared the 1982 Constitution), and all bureaucrats who acted under the orders and instructions of military leaders. This has meant that no human rights violations perpetrated during the military regime could so far be investigated or tried. …

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